Petition for Writ of Certiorari — Knights of the Ku Klux Klan v. Curators of the University of Missouri
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(i) Supreme Court, U.S.
No. eee ee
In The 918 38 NAY 17 200
Supreme Court of the United States;,,
*
KNIGHTS OF THE KU KLUX KLAN, Realm of Missouri,
and Michael Cuffley,
y. Petitioners,
CURATORS OF THE UNIVERSITY OF MISSOURI;
Patricia Bennett, in her official capacity as general
manager of KWMU Radio only; Theodore C. Beckett, in
his official capacity as Curator of the University of
Missouri; Paul T. Combs, in his official capacity as
Curator of the University of Missouri; Adam B. Fischer,
in his official capacity as Curator of the University of
“Missouri; Mary S. Gillespie, in her official capacity as
Curator of the University of Missouri; Fred L. Hall, Jr.,
in his official capacity as Curator of the University of
Missouri; Malaika B. Horne, Dr., in her official capacity
as Curator of the University of Missouri; John A. Mathes,
in his official capacity as Curator of the
University of Missouri; Paul W. Steele, in his official
capacity as Curator of the University of Missouri;
Hugh E. Stephenson, Jr., Dr., in his official capacity
as Curator of the University of Missouri,
Respondents.
¢
On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Eighth Circuit
¢
PETITION FOR WRIT OF CERTIORARI
¢
Rosert HERMAN
Counsel of Record
ScHWARTZ, HERMAN & DaAvIDSON
University Club Tower
1034 South Brentwood
Suite 1800
St. Louis, Missouri 63117
(314) 862-0200
Attorneys for Petitioners
QUESTION PRESENTED :
Whether the First Amendment allows a State University
radio station to refuse the routine sale of broadcast
announcements to the Ku Klux Klan solely on the assertion
that University students, donors, and other broadcast
announcement purchasers will be offended by the Klan’s
identity and viewpoint?
i
OPINIONS BELOW
The opinion of the Eighth Circuit Court of Appeals
is reported at 2000 WL 189834 (8" Cir. 2000) (App.A,
infra). The judgment of the District Court for the
Eastern District of Missouri is reported at 29 F.Supp.2d.
576 (E.D. Mo 1998). (App. B, infra).
STATEMENT OF JURISDICTION
The Eighth Circuit entered its judgment on February 17,
2000. The jurisdiction of this Court is invoked under 28
U.S.C. §1254(1). 7
STATEMENT OF THE CASE
The University of Missouri radio station' routinely sells
thousands of broadcast announcements as a benefit’ to
hundreds of private parties for the broadcast of private
messages.
The radio _ station refuses to sell broadcast
announcements to Appellants Knights of the Ku Klux Klan,
Realm of Missouri despite its admission that the Klan and
1. The Curators of the University of Missouri is a public corporation
established under the law of the State of Missouri. The Curators operate
the University of Missouri that, in turn, operates radio station KWMU.
2. The radio station sales division sells 15 second broadcast
announcements designated “underwriting messages.” The radio station
sales brochure states: “Underwriting is your opportunity to reach a
targeted group of well educated, affluent people in the greater St. Louis
area, including east central Missouri and southwestern I!linois.
...Underwriting on KWMU-FM 90.7 provides valuable recognition to
the underwriter. ...”
3. The University concedes that the underwriting message itself is
neither a statement of its policy nor its speech, and that the
underwriting message is the speech of the underwriters.
its proposed broadcast announcement are permissible by
law and radio station written regulations.’
The Klan filed for injunctive relief and declaratory
judgment in the United States District Court for the Eastern
District of Missouri pursuant to 28 U.S.C. § 1331 and 42
U.S.C. § 1983, alleging that the radio station’s refusal to
sell broadcast announcements to the Klan violates the First
Amendment, as applied to the States through the
Fourteenth Amendment.
Both the Eighth Circuit (Appendix A, p.8, infra.) and
the District Court (Appendix B, p. 9, infra.) expressly
found that the radio station refused such sale because of its
belief that the Klan’s identity would offend University
students, donors, and other underwriters, allegedly resulting
4. A wide range of commercial, not-for-profit and social action
organizations are permitted to purchase broadcast announcements,
including car dealers, law firms, duct cleaning services, dating services,
Planned Parenthood, American Friends Service Committee, Acquinas
Institute of Theology, and The American Jewish Congress .
Social action and political advocacy organizations are allowed to
advance their cause and philosophy: e.g.:
{program name] is brought to you by the St. Louis based Human
Rights Action Service, celebrating fifty years of the universal
declaration of human rights and preparing letters for subscribers
responding to human rights cases.
[Program name] is brought to you by American Friends Service
Committee, working for passage of an arms trade code of conduct to
stop the sale of U.S. weapons to dictators and to end the arms trade
boomerang. For more information, call 314-862-5773.
[program name] is made possible in part by Aquinas Institute of
theology -- a national leader in preaching education -- dedicated to
preparing church leaders for the 2Ist century presenting the great
preacher award to Monsignor James Telhorst at the Ritz-Carlton -- call
977-3869.
[program name] is made possible in part by Planned Parenthood of
the St. Louis region providing a wide range of health and education
services from contracéptive care to education programs for families.
Planned Parenthood, we're more than you think, 533- 9933.
in a decline in University revenue and enrollment.’ The
Eighth Circuit also held that the radio station was entitled
to exclude the Klan’s offensive viewpoint in the exercise of
editorial discretion. (Appendix A., p.19, infra.)
The radio station’s sale of thousands of broadcast
announcements to hundreds of private parties, while
excluding Appellants on the basis of invidious viewpoint
discrimination, justifies summary reversal of the Eighth
Circuit opinion.
REASONS FOR GRANTING THE WRIT
The radio station’s refusal to sell broadcast
announcements to the Klan in reaction to its identity and
viewpoint presents a unique opportunity to affirm First
Amendment principles prohibiting government punishment
of disfavored viewpoints: an opportunity lacking in prior
cases where the government asserted non-viewpoint related
reasons for its action.
_The State’s imposition of politically acceptable beliefs
and viewpoints as a means of allocating government
benefits remains a constant danger to the continued vitality
of the First Amendment. The Eighth Circuit creates a new
rule in conflict with all relevant decisions of this Court: that
the State’s grant of favored status to beneficiaries on the
basis of their viewpoint and identity constitutes government
speech, entitled to editorial discretion. This new rule
creates a fissure in the fabric of the First Amendment,
offering States an excuse for denying participation in a
government benefit program on the grounds that other
program participants will be offended by unorthodox views
5. The Court’s characterization of the radio station’s rationale as
“economic” does not negate the impermissible viewpoint
discrimination. Surely, Southern restaurant owners in the 1960s
justified their racial discrimination as “just business.”
and politics.
The State may not allocate public benefits on a basis that
discriminates against disfavored viewpoints. National
Endowment for the Arts v. Finley, 118 S.Ct. 2168, 2178
(1998). The radio station may not refuse to sell broadcast
announcements to private parties on the basis of subjective
criteria for the purpose of suppressing dangerous ideas. /d.
The State does not “speak” by its allocation of public
benefits, see, Lamb's Chapel v. Center Moriches Union
Free School Dist., 508 U.S. 384,386,, 113 S.Ct. 2141,
2143-4, 124 L.Ed. 2d 352 (1993) (School auditorium);
Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546,
555, 95 S.Ct. 1239, 1244-5, 43 L.Ed. 2d 448 (1975)
(Municipal auditorium). Nor does Arkansas Educ.
Television Comm'n vy. Forbes, 118 S.Ct. 1633 (1998)
authorize discriminatory allocation of public benefits. Even
in the case of government funding, a pressing constitutional
question arises when the government imposes a
disproportionate burden “calculated to drive certain ideas
or viewpoints from the marketplace.” Finley, 118 S.Ct. at
2179, quoting, Simon & Schuster Inc. v. members of N_Y.
Crime Victims Bd., 502 U.S. 105,116, 112 S.Ct. 501, 308,
116 L.Ed. 2d 476 (1991).
The State’s desire to “avoid the discomfort and
unpleasantness that always accompanies an unpopular
view,” Cornelius v. NAACP Legal Defense & Educational
Fund, Inc., 473 U.S. 788, 799, 105 S.Ct. 3439, 3462, 87
L.Ed.2d 567 (1985), is the very definition of invidious
viewpoint discrimination.°
6.“[V]iewpoint discrimination occurs when government allows one
message while prohibiting the messages of those who can reasonably
be expected to respond.” Rosenberger v. Rector & Visitors of the
University of Virginia, 115 S.Ct. 2510, 2548 (1995).
CONCLUSION
For these compelling reasons of Constitutional
importance, the Court should grant this Writ of Certiorari
with an accompanying order of Summary Reversal.
Respectfully submitted,
Robert Herman
Counsel of Record
Schwartz, Herman & Davidson
University Club Tower
1034 South Brentwood
Suite 1800
St. Louis, Missouri 63117
(314) 862-0200
APPENDIX A
KNIGHTS OF THE KU KLUX KLAN, Realm of
Missouri, and Michael Cuffley, Appellants, v.
CURATORS OF THE’ UNIVERSITY OF
MISSOURI; Patricia Bennett, in her official capacity as
general manager of KWMU Radio only; Theodore C.
Beckett, in his official capacity as Curator of the
University of Missouri; Paul T. Combs, in his official
capacity as Curator of the University of Missouri;
Adam B. Fischer, in his official capacity as Curator of
the University of Missouri; Mary S. Gillespie, in her
official capacity as Curator of the University of
Missouri; Fred L. Hall, Jr.; in his official capacity as
Curator of the University of Missouri; Malaika B.
Horne, Dr., in her official capacity as Curator of the
University of Missouri; John A. Mathes, in his official
capacity as Curator of the University of Missouri; Paul
W. Steele, in his official capacity as Curator of the
University of Missouri; Hugh E. Stephenson, Jr., Dr., in
his official capacity as Curator of the University of
Missouri, Appellees.
American Civil Liberties Union of Eastern Missouri,
Amicus on Behalf of Appellants. National Public Radio,
a/k/a National Public Radio, Inc., Amicus on Behalf of
Appellees.
No. 99-1168.
Appeal from the United States District Court for the
Eastern District of Missouri.
-APPENDIX A- p. | -
BEFORE: MCMILLIAN, MURPHY, and TUNHEIM, '
Circuit Judges.
MCMILLIAN, Circuit J.
The Knights of the Ku Klux Klan, Realm of Missouri
("Missouri KKK"), and Michael Cuffley, the state
coordinator for the Missouri KKK (together "appellants"),
appeal from a final order entered in the United States
District Court * for the Eastern District of Missouri granting
summary judgment in favor of the individual Curators of
the University of Missouri and Patricia Bennett, general
manager of the radio station KWMU (together "appellees").
See Knights of the Ku Klux Klan, Realm of Missouri v.
Bennett, 29 F.Supp.2d 576 (E.D.Mo.1998). For reversal,
appellants argue that the district court erred in holding that,
in light of certain facts not genuinely disputed, appellees’
rejection of the Missouri KKK as an underwriter violated
neither the First Amendment nor the Equal Protection
Clause of the Fourteenth Amendment. For the reasons
discussed below, we affirm the order of the district court.
Jurisdiction
Jurisdiction in the district court was proper based upon
28 U.S.C. § 1343. Jurisdiction in the court of appeals was
1. The Honorable John R. Tunheim, United States District Judge for the
District of Minnesota, sitting by designation.
2. The Honorable Thomas C. Mummert, III, United States Magistrate
Judge for the Eastern District of Missouri.
-APPENDIX A- p. 2 -
nt “
proper based upon 28 U.S.C. § 1291. The notice of appeal
was timely filed pursuant to Fed.R.App.P. 4(a).
Background
KWMU is a not-for-profit public broadcast radio station
located on the campus of the University of Missouri at St.
Louis ("UMSL"). KWMU is owned and operated by The
Curators of the University of Missouri, a public corporation
established under state law, see Mo.Rev.Stat. § 172.020
(1999), and licensed by the Federal Communications
Commission ("FCC") to run the station. See 29 F .Supp.2d
at 577. The Chancellor of UMSL, Dr. Blanche Touhill, is
responsible for overseeing KWMU's operation. See
Appellees' Appendix at 249. Patricia Bennett, the director
and general manager of KWMU, supervises the station's
administration, development, engineering, programming,
and sales divisions on a daily basis. Bennett also
communicates weekly with Dr. Donald Dreimeier, Deputy
to the Chancellor of UMSL, who in turn reports to Touhill.
See Transcript of Dist. Ct. Evidentiary Hearing at 7, 9
(Aug. 12, 1998) [hereinafter "Tr."].
To help fund the station, KWMU operates an "enhanced
underwriting" program within its sales division. See id. at
30, 32. Pursuant to federal law, the station acknowledges
on air any individual or group source of funding for a
particular broadcast matter. See 47 U.S.C. § 317(a)(1)
(requiring On-air announcement at time of sponsored
broadcast identifying source of "any money, service or
other valuable consideration ... directly or indirectly paid,
or promised to or charged or accepted by" the broadcasting
station). Contributors of such funds are referred to as
"donors" or "underwriters." See, e.g., In re Commission
Policy Concerning the Noncommercial Nature of.
Educational Broadcasting, Public Notice, 7 F.C.C.R. 827
(1992) ("1992 Order"). Although federal law forbids
noncommercial educational FM broadcasters like KWMU
-APPENDIX A- p. 3 -
from broadcasting "advertisements," see 47 U.S.C. § 399b;
47 C.F.R. § 73.503(d), public broadcasters are permitted to
"enhance" or expand the scope of donor or underwriter
acknowledgments by including (1) logograms or slogans
which identify the underwriter but do not promote it, (2)
location information on the donor, (3) value neutral
descriptions of the underwriter's product line or service,
and (4) donor brand names, trade names, and product or
service listings. See In re Commission Policy Concerning
the Noncommercial Nature of Educational Broadcasting
Stations, 97 F.C.C.2d 255, 263 (1984) ("1984 Order").
Typically, the announcement is a fifteen-second message,
drafted by the underwriter or KWMU staff. See Tr. at 38-
39. All scripts are reviewed and edited by station
management to ensure compliance with federal law and
regulations as well as KWMU underwriting guidelines, °
3. KWMU's underwriting guidelines provide, in relevant part, as
follows:
On-air Identification of Underwriters:
1.) An underwriter of programming is required by the FCC to be
identified by its legal name or [its] recognized name of operation.
2.) An entire underwriting announcement may not exceed 15
seconds, including underwriters{'] name and name of program
sponsored.
3.) On-air announcements may include:
(a) The name of the organization{.]
(b) A logogram or slogan that identifies but does not promote.
Logograms and slogans must comply with the rules outlined in FCC
86-161.
(c) Location{.]
(d) Value neutral descriptions of a product line or service.
(e) Trade names, product or service listings that aid in identifying
the donor.
4.) On-air announcements may not include:
-APPENDIX A- p. 4 -
because UMSL (as the licensee of KWMU) is ultimately
liable for all transmissions. See, e.g., 47 U.S.C. §
503(b)(1), (b)(2)(A) (forfeiture provisions); Russellville
Educ. Broadcast Found., 'Licensee of KMTC (FM), Letter,
DA 99-1280 (July 1, 1999) (imposing $2500 forfeiture
penalty for impermissible advertisements); Penfield
Communications, Inc., Licensee of KRTM_ (FM),
Memorandum Opinion & Order & Forfeiture Order, DA
98-2407 (Nov. 25, 1998) (imposing $4000 forfeiture
penalty for same reasons).
(a) A call to action to use a product or service, or inducement to
buy, sell, rent [or] lease or visit.
(b) Qualitative or comparative description of a company, its
products or services.
(c) Pricing information or indication of associated savings or value.
(d) Logograms or slogans that contain comparative or qualitative
descriptions or are promotional in nature.
(e) More than three trade names, product(s] or service listing[s] in a
single announcement.
(f) Any form of misrepresentation.
(g) The words "you," "your" and "we." Use of these words implies
a relationship between the funder and the listener, rather than just
between the funder and KWMU.
5.) No pre-produced underwriting announcements, audio logos, or
musical themes will be accepted.
{6.} ) KWMU airs no more than three local underwriter
announcements at each scheduled break.
[7.] ) Under FCC rules, [regulations] and policies, KWMU has a
duty to determine what programming will best serve the public interest.
The selection of spokespersons, format, subject matter, duration and
scheduling of broadcast material is a matter within KWMU's discretion.
KWMU reserves the right to reject any material.
Appellants’ Appendix at 109-11.
-APPENDIX A- p. 5 -
imc i emi me SS SADE 0 SPH SLCNEA SSBF SUSIE SER Lan nin a on oS et ooo
iA ORT FMI EO CISION CNR ANGST ES NS SE i earn taer OME
As general manager, Bennett designates the percentage
of total air time available for underwriting spots as well as
the amount of underwriting time allotted to particular
programs. See Tr. at 21-22. Bennett accepts donor funds
from, and approves accompanying messages _ of,
approximately thirty underwriters per week. See id. at 122.
As a matter of course, Bennett does not examine the
philosophy or policies of each potential donor. See id. at
62. Nonetheless, prior to the institution of this action,
Bennett has rejected financial support from several
poteiitial underwriters. See 29 F.Supp.2d at 578 (noting
rejection of underwriting requests from a group called
"Ultimate Fighting Championships," a political entity titled
"The American Friends Service Committee," and an
establishment known to be "a house of ill repute").
Some time prior to September 24, 1997, Michael
Cuffley * contacted KWMU by telephone and requested
information on underwriting several fifteen-second spots
for NPR's "All Things Considered" program. See Tr. at
160-61. Cuffley testified that he enjoyed the program,
wanted to support KWMU, and hoped to attract more
highly educated people to his organization. See id. at 159-
60. Cuffley did not initially identify himself or his
4. As state coordinator for the Missouri KKK, Cuffley is the highest
ranking official of that organization. Cuffley's duties for the
Missouri KKK include speaking at public events, planning
activities, and coordinating activities with other Ku Klux Klan
organizations around the country. See Tr. at 157-59.
Although not "officially" tied to any other Ku Klux Klan groups,
the Missouri KKK subscribes to the general principles of the Ku
Klux Klan and traces its roots back to 1865 and the aftermath of the
Civil War. As such, the Missouri KKK admits only American-
born, white Christians, does not openly advocate violence, but does
participate in "cross-lightings" at which members wear traditional
white robes and hoods. Cuffley himself has participated in over a
hundred such cross-lightings. See id. at 170-71.
-APPENDIX A- p. 6 -
Ee Tee eee gee OT eee TT Ce eT Gee ne een
organization. See id. at 161. ©A KWMU sales
representative quoted Cuffley the underwriting costs for
not-for-profit organizations and requested his telephone
number, advising Cuffley that a sales representative would
contact him at a later date. See id. at 161, 163. At that
point, no agreement was reached between KWMU and
if Cuffley.
On September 24 and 29, 1997, Cuffley wrote to
KWMU requesting the opportunity for the Missouri KKK
to sponsor four segments of NPR's "All Things
Considered." See 29 F.Supp.2d at-578. Cuffley submitted
the following message to KWMU to be read as an
underwriting acknowledgment:
The Knights of the Ku Klux Klan, a White Christian
organization, standing up for rights and values of White
Christian America since 1865. For more information|[,]
please contact the Knights of the Ku Klux Klan, at P.O.
Box 525[,] Imperial, Missouri[,] 63052. Let your voice
be heard!
Appellees' Appendix at 122.
Bennett contacted her immediate supervisor, Driemeier,
and requested a decision from Chancellor Touhill regarding
the Missouri KKK's proposed underwriting support.
Bennett recommended that KWMU refuse the funds but did
not outline reasons for this recommendation. See Tr. at 91,
153-54. Driemeier told Touhill of the Missouri KKK's
offer but did not inform her of Bennett's recommendation.
Prior to making her decision, Touhill did not speak with
Bennett regarding the matter. See id. at 124, 154. No one
had previously consulted Touhill regarding the acceptance
or rejection of underwriting funds. See id. at 132.
Touhill ultimately rejected the Missouri KKK's
proposed underwriting gift. See id. at 131, 133. At the
district court evidentiary hearing, Touhill explained her
-APPENDIX A- p. 7 -
decision as follows. She first noted that KWMU was
legally required to acknowledge donors on the air. See id.
at 133, 135. Touhill anticipated that an acknowledgment of
the Missouri KKK as an underwriter would result in a
significant loss of revenue to UMSL. Touhill specifically
stated that these business and economic reasons, and not
the views of the Missouri KKK, were the basis for her
decision. See id. at 135-36.
In some detail, Touhill outlined the negative
consequences of accepting underwriting funds from the
Missouri KKK. First, Touhill believed Missouri KKK
sponsorship would jeopardize future gifts from major
African-American donors. See id. at 133-35. Based on her
experience and interaction with these donors, Touhill
predicted a twenty percent decline in annual gifts to UMSL,
or a loss of some two million dollars per year. See id. at
148. Second, Touhill projected a drop in_ student
enrollment if the Missouri KKK were accepted as an
underwriter. Touhill estimated that twenty-five percent of
the 1,565 African-American students at UMSL (and ten
percent of the 9,142 white students) would leave the
school, resulting in an annual loss of over three million
dollars. See id. at 147-48. Finally, Touhill stated that
KWMU's association with the Missouri KKK would
counteract her efforts, both as the primary spokesperson for
UMSL and as a member of multiple civic and corporate
boards, in creating and maintaining a level playing field in
the community for African-Americans. See 29 F.Supp.2d
at 580.
Based on Touhill's decision, Bennett wrote Cuffley on
October 3, 1997, and informed him that KWMU would not
accept underwriting funds from the Missouri KKK. See
Appellants' Appendix at 79. Appellants subsequently filed
this action in the district court, seeking injunctive and
declaratory relief on their claim that appellees had violated
their First and Fourteenth Amendment rights by refusing
-APPENDIX A- p. 8 -
——
their request for program underwriting. The parties
subsequently filed cross-motions for summary judgment.
See 29 F.Supp.2d at 577.
After a full hearing on the merits, the district court
granted appellees' motion for summary judgment and
denied appellants’ cross-motion. The district court held that
KWMU's enhanced underwriting program was not a forum
for speech and therefore did not implicate the First
Amendment. See id. at 583-84. The district court initially
noted that public broadcasters are not common carriers in
interstate commerce, but rather licensed "public trustees,"
with the responsibility to "schedule programming. that
serves the public interest, convenience, and necessity." Id.
at 582-83 (quoting Arkansas Educ. Television Comm'n vy.
Forbes, 118 S.Ct. 1633, 1639 (1998) (Forbes)) (internal
citations omitted). Thus, the district court reasoned,
Congress' decision to license broadcasters in such a manner
indicated its preference that "the allocation of journalistic
priorities should be concentrated in the licensee rather than
diffused among many," Columbia Broadcasting Sys., Inc.
v. Democratic Nat'l Comm., 412 U.S. 94, 125 (1973)
(CBS), and meant that public broadcasting "as a general
matter does not lend itself to scrutiny under the forum
doctrine," with the exception of political candidate debates.
Forbes, 118 S.Ct. at 1640. The district court reasoned that,
because this case did not fall within the scope of the
exception outlined under Forbes, no forum examination
was necessary. See 29 F.Supp.2d at 583-84. The district
court specifically rejected appellants' argument that the
enhanced underwriting program, as a revenue-generating
operation analogous to advertising space on public buses,
did not "enjoy the protection granted in Forbes to editorial
discretion." Id. at 584. The district court determined that
broadcasters’ finite amount of air time meant that anything
broadcast during that time was a matter of discretion and
was subject only to license, FCC, and internal restrictions.
-APPENDIX A- p. 9 -
Otherwise, "[t]o interpret the enhanced underwriting
program as a forum would be to engage the courts in the
day to day operation of the radio station--an engagement
prohibited by Forbes." Id. In the alternative, under a forum
analysis, the district court held that KWMU's enhanced
underwriting program was not a designated public forum
and was, at best, a nonpublic forum in which rejection of
the Missouri KKK as an underwriter was based on
uncontradicted business and economic reasons and did not
constitute an attempt to suppress the group's viewpoint.
See id. at 586-87. This appeal followed.
Discussion —
We review the district court's grant of summary
judgment de novo, applying the same standard as the
district court. See Brandt v. Davis, 191 F.3d 887, 891 (8th
Cir.1999). Summary judgment is appropriate when it is
shown "that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a
matter of law." Fed.R.Civ.P. 56(c). "All facts are viewed in
the light most favorable to the party opposing the motion,
giving that party the benefit of all reasonable inferences to
be drawn from the facts." Portis v. Folk Constr. Co., 694
F.2d 520, 522 (8th Cir.1982).
For reversal, appellants initially claim that the
underwriting acknowledgments do _ not constitute
government speech and therefore are not shielded from
forum analysis. Appellants contend that Forbes does not
"immunize all activities conducted in the name of public
broadcasting from First Amendment scrutiny," but instead
insulates only governmental speech and communicative
activity. Reply Brief at 7. Specifically, appellants argue
that the Forbes Court sought to protect from outside
interference a _ public broadcaster's selection and
presentation of third party speech within its broadcast
programming. See Forbes, 118 S.Ct. at 1639 ("When a
-APPENDIX A- p. 10 -
public broadcaster exercises editorial discretion in the
selection and presentation of its programming, it engages in
speech activity.... Although programming decisions often
involve the compilation of the speech of third parties, the
decisions nonetheless constitute communicative acts.")
(citations omitted). Appellants assert that, although the
station is normally engaged in such protected speech for the
better part of its broadcast, KWMU "relinquishes its
speaker's role and becomes a mere conduit of third party
speech" through its enhanced underwriting program. Reply
Brief at 8. Appellants note that, although KWMU initially
exercises its editorial discretion by setting aside time for
the broadcast of third party messages and later exerts some
control over the content and form of underwriters’
messages, KWMU admittedly does not investigate,
promote, or vouch for the views expressed within the
underwriting spot. Thus, appellants argue, the underlying
nature of the underwriter spots remains unchanged: the
underwriting acknowledgments clearly express the speech
and viewpoints of the underwriters, not KWMU. ° Cf.
Bryant v. Secretary of the Army, 862 F.Supp. 574, 580-81
(D.D.C.1994) (Bryant) (finding that letters to editor
published in military base newspaper "clearly d[id] not
reflect government speech in any ordinary sense of the
term" and thus Army's editorial regulation, which
"touche[d] upon instances in which the Government is
seeking to regulate speech," was not immunized from First
5. Appellants contend that the district court "confuse[d] the medium
with the message," see Brief of Appellants at 41, by stressing the
significance of a KWMU employee, rather than a donor representative,
reading the underwriting announcement. See 29 F.Supp.2d at 583.
Appellants argue that the use of government employees to facilitate
transmission to the public is irrelevant, as long as the messages are
those of the underwriters and not of the government. See, e.g., Christ's
Bride Ministries, Inc. v. Southeastern Pa. Transp. Auth., 148 F.3d 242
(3d Cir.1998) (ads in public subway and railway stations presumably
posted by government employees).
-APPENDIX A- p. 11 -
Amendment challenges). | Accordingly, this lack of
government speech means that KWMU's_ enhanced
underwriting program is afforded no insulation from forum
analysis under Forbes.
Appellants further assert that the enhanced underwriting
program is merely a revenue-generating operation without
journalistic or editorial character and, as such, cannot claim
protection from forum analysis under Forbes. Appellants
claim that Forbes insulates only matters of editorial or
journalistic discretion and that KWMU's exchange of
airtime for funds is not of the journalistic or editorial
quality protected by Forbes. ° See Forbes, 118 S.Ct. at
1640 ("Claims of access under our public forum precedents
could obstruct the legitimate purposes of ... broadcasters.
Were the doctrine given sweeping application in this
context ... ‘[t]he result would be a further erosion of the
journalistic discretion of broadcasters,' transferring ‘control
over the treatment of public issues from the licensees who
are accountable for broadcast performance to private
individuals.’ ") (quoting CBS, 412 U.S. at 124). Instead,
KWMU's enhanced underwriting program was a “discrete
and severable activity from KWMU's primary journalistic
function ... administered by sales people with business
6. Amicus curiae American Civil Liberties Union of Eastern
Missouri ("ACLU") refines this argument by drawing a strict
distinction between "programming" and "programming breaks" such as
underwriting announcements. See, e.g., 47 U.S.C. § 399a(b) (requiring
that sponsorship announcements not interrupt "regular programming").
ACLU contends that Forbes protection only extends to the editorial
discretion involved in programming. See, e.g., Forbes, 118 S.Ct. at
1639 ("When a public broadcaster exercises editorial discretion in the
selection and presentation of its programming, it engages in speech
activity."). Based on this narrow reading of Forbes, ACLU argues that
programming breaks are not of adequate journalistic caliber and thus
forum analysis is required.
-APPENDIX A- p. 12 -
concerns, not journalists with editorial concerns." Brief for
Appellants at 43. Appellants contend that this "selling" of
airtime to underwriters is analogous to the sale of
advertising spaces on or within public transit facilities.
See, e.g., Planned Parenthood Ass'n v. Chicago Transit
Auth., 767 F.2d 1225, 1227 (7th Cir.1985) (finding transit
authority's refusal to sell plaintiff advertising space on its
buses and transit cars constitutionally impermissible).
Moreover, the fact that KWMU requires a donation (or
charges a fee) for the underwriting announcements does not
"negate the possibility that the government" has created a
forum. Airline Pilots Ass'n Int'l v. Department of Aviation,
45 F.3d 1144, 1155 (7th Cir.1995); see also United Food &
Comm. Workers Union, Local 1099 v. Southwest Ohio
Reg. Transit Auth. 163 F.3d 341, 353-54 (6th Cir.1998)
("[T]he goal of generating income by leasing ad space
suggests that the forum may be open to those who paid the
requisite fee."). .Because "[e]nhanced underwriting is no
more journalism than advertisements on the outside of
buses are transportation," appellants argue that the district
court misapprehended the scope of Forbes and thereby
erred in refusing to apply forum analysis to KWMU's
enhanced underwriting program. Brief for Appellants at
42.
Appellants additionally argue that courts can properly
apply forum analysis under Forbes where the broadcaster
intentionally sets aside time for the presentation of third
party views. Appellants imply that, although "the First
Amendment of its own force does not compel public
broadcasters to allow third parties access to their
programming," Forbes, 118 S.Ct. at 1640 (emphasis
added), broadcasters may create fora through their own
intentional, voluntary actions. For example, in the context
of candidate debates, the Forbes Court specifically noted
that forum analysis was appropriate because the
broadcasting activity was by design a forum for the
-APPENDIX A- p. 13 -
candidates’ political speech, "where the views expressed
were those of the candidates, not [the broadcaster's] own."
Id. Appellants argue that KWMU has similarly provided
affirmative public access to its airwaves by dedicating
airtime to the specific purpose of transmitting underwriter
speech in exchange for underwriting funds. Accordingly,
appellants contend that the district court should have
analyzed KWMU's_ voluntarily created, enhanced
underwriting program under the forum doctrine. We
disagree.
Te
We reiterate Forbes ' admonition that "[h]aving first
arisen in the context of streets and parks, the public forum
doctrine should not be extended in a mechanical way to the
very different context of public television broadcasting."
Id. at 1639. ’ Although open access and viewpoint
neutrality may be compatible with the intended aims of
streets and parks, such forum requirements are for the most
part inapplicable in the context of public broadcasting,
where substantial discretion is accorded to broadcasters
with respect to the daily operation of their stations. See id.
("[B]road rights of access for outside speakers would be
antithetical, as a general rule, to the discretion that stations
and their editorial staff must exercise to fulfill their
journalistic purpose and statutory obligations."). Instead of
being compelled to open their facilities "on a nonselective
basis to all persons wishing to talk about public issues,"
CBS, 412 U.S. at 105, public broadcasters enjoy the "widest
journalistic freedom" consistent with their statutory
7. Forbes specifically dealt with the arena of public television
broadcasting. However, for the purposes of First Amendment analysis,
public radio and public television are ordinarily treated the sanie, see
Schneider v. Indian River Community College Found., 875 F.2d 1537,
1541 (11th Cir.1989) (Schneider ), as are television and radio generally.
See Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 637-38 (1994)
(Turner ).
-APPENDIX A- p. 14 -
obligations to broadcast material serving the "public
interest, convenience, and necessity." \Id. at 110; 47 U.S.C.
§ 309(a). Because broad application of the forum doctrine
in this context would require "oversee[ing] far more of the
day-to-day operations of broadcasters’ conduct, - deciding
such questions as whether a particular individual or group
has had sufficient opportunity to present its viewpoint and
whether a particular viewpoint has already been sufficiently
aired," CBS, 412 U.S. at 127, "public broadcasting as a
general matter does not lend itself to scrutiny under the
forum doctrine." Forbes, 118 S.Ct. at 1640. Against this
backdrop, we reject appellants’ principal contention that the
district court erred in determining that KWMU's enhanced
underwriting program was not a forum.
First and foremost, KWMU's _ underwriting
acknowledgments constitute governmental speech on the
part of UMSL. Contrary to appellants’ contentions, the
central purpose of the enhanced underwriting program is
not to promote the views of the donors, but to acknowledge
"any money, service, or other valuable consideration ...
directly or indirectly paid, or promised to or charged or
accepted by" the station with respect to the broadcast of
any matter. 47 U.S.C. § 317(a)(1). In other words,
KWMU's_ underwriting announcements are _ federally-
mandated sponsorship identifications, in which UMSL
"speaks" by airing its acknowledgments of funds received
from certain parties to pay for specific KWMU broadcasts.
Because KWMU must by law publicly advise its listeners
as to the sources of funds "accepted" for its broadcasts,
UMSL's decision to accept or reject the funds of
underwriters is itself a governmental decision to speak or
remain silent. ® Cf. Muir v. Alabama Educ. Television
8. Even if KWMU were not legally required to acknowledge its
underwriters, UMSL as the licensee of the broadcaster arguably still
has the discretion to reject the underwriting funds in the first instance.
47 U.S.C § 301(a)(1) specifically states that sponsor identification
-APPENDIX A- p. 15 -
Comm'n, 688 F.2d 1033, 1044 (Sth Cir.1982) (en banc)
(Muir) ("The First Amendment does not prohibit the
government itself from speaking, nor require the
government to speak. Similarly, the First Amendment does
not preclude the government from exercising editorial
discretion over its own medium of expression."). As
speaker, UMSL exercises control not only over the decision
to accept or reject the donations, but also over the form and
content of the announcements themselves. * Cf
acknowledgments are necessary where valuable consideration has to be
“accepted by" the broadcaster; presumably, if the licensee can "accept"
the funds, it can voluntarily reject the funds as well. See The FCC and
Broadcasting, 1800C1-FCC (December 1998) (implying that stations
have discretion to reject underwriting funds for tobacco and alcoholic
beverage producers, even though FCC has no specific rule directing
station licensees to accept or reject such funds). Moreover, appellants
can offer no support in the case law for the proposition that, where
descriptive information about the donor is conveyed to the public, a
donor has a First Amendment right to have its cash contribution
accepted by the donee, in this case, UMSL.
9. Appellants contend that, because KWMU does not investigate,
promote, or vouch for the underwriter's products, services, or goals, the
announcements therefore must express the views of the underwriters,
not the government. See Brief of Appellants at 40. Although the
logograms, slogans, and product summaries in these fifteen-second
acknowledgments may in fact identify the underwriter, conveyance of
this collateral information remains a communicative act of the
government, even if it only involves a compilation of third-party
speech. See Forbes, 118 S.Ct. 1633, 1639 ("Although [broadcaster]
programming decisions often involve the compilation of the speech of
third parties, the decisions nonetheless constitute communicative
acts."); see also Hurley v. Irish-Am. Gay, Lesbian & Bisexual Group of
Boston, Inc., 515 U.S. 557, 570 (1995) (noting that a speaker need not
"generate, as an original matter, each item featured in the
communication"). Notably, this governmental announcement of
broadcast sponsorship is a far cry from letters to the editor published in
a government newspaper, where the letters (while edited for space
iimitations) are more obviously the speech of the writer, not the
government. See Bryant, 862 F.Supp. at 580.
-APPENDIX A- p. 16 -
Rosenberger v. Rector & Visitors of the Univ. of Virginia,
S515 U.S. 819, 833 (1995) (Rosenberger ) ("When the
University determines the content of the education it
provides, it is the University speaking, and we have
permitted the government to regulate the content of what is
or is not expressed when it is the speaker or when it enlists
private entities to convey its own message.") (emphasis
added); Schneider, 875 F.2d at 1540 (noting that, where
"the activity is not designed to function as a pure
marketplace of ideas, 'the state may regulate content in
order to prevent hampering the primary function of the
activity.’ ") (quoting Muir, 688 F.2d at 1050)). KWMU
staff members compose, edit, and review acknowledgment
scripts to insure compliance with both FCC and internal
guidelines. Moreover, the station does not broadcast "pre-
produced" announcements submitted by underwriters;
instead, KWMU _ employees’ themselves read _ the
acknowledgments on air. '° Finally, as speaker and
licensee, UMSL is ultimately responsible for all of its
broadcast material, including the underwriting
announcements, and is subject to sanctions for failure to
comply with its legal obligations. See 47 U.S.C. §§ 309(a)
(licensee duty to broadcast for public necessity, interest,
etc.), 503(b)(1), (b)(2)(A) (forfeiture provisions). As
appellees point out, "[i]t would be anomalous to impose
these penalties on a station for any speech other than its
own." Brief for Appellees at 29.
10. Appellants also argue that the district court's reference to
KWMU employees is improper, charging that the use of government
employees for the transmission of the message is irrelevant to the
analysis. Appellants misread the district court's analysis. The district
court merely noted that, given the substantial editing, review, and lack
of pre-produced messages, the announcements did not involve the
expression of views with "minimal intrusion by the broadcaster," a
criterion which helped form the basis for the Forbes Court's forum
analysis of candidate debates.
-APPENDIX A- p. 17 -
Even assuming arguendo that insulation from forum
analysis only arises for government speech adequately
related to matters of editorial or journalistic discretion,'' we
believe that KWMU's enhanced underwriting program
meets that prerequisite. Decisions about what material to
broadcast (including underwriting acknowledgments)
involve editorial discretion because the broadcaster must
decide whether to publish, what to publish, what to say, and
what not to say. See CBS, 412 U.S. at 124 ("For better or
worse, editing is what editors are for; and editing is
selection and choice of material."); 1 New Shorter Oxford
English Dictionary 784 (4th ed.1993) (defining "edit" as
"bring into order for publication after compilation by others
or oneself"). Given that UMSL's license and corresponding
obligations extend to “all matter broadcast," 47 U.S.C. §§
301, 317, its editorial discretion is co-extensive and not
limited to appellants’ strict definition of "programming."
See CBS, 412 U.S. at 123-25 (holding that broadcast
licensees are not required to accept all paid political
11. The Supreme Court has recently distinguished, in dicta,
between speech on government property and speech by the
government. In Rosenberger, 515 U.S. at 833, the Court noted that
“when the State is the speaker, it may make content-based choices.”
Specifically, the Court has “permitted the government to regulate the
content of what is or is not expressed when it is the speaker or when it
enlists private entities to convey its own message.” Id. Moreover,
whereas forum analysis and viewpoint neutrality may be required when
the government "expends funds to encourage a diversity of views from
private speakers,” the government's “own speech ... is controlled by
different principles.” Id. at 834. Aside from these statements, no other
Supreme Court decisions define the limitations, if any, which would be
placed on such governmental speech. See 4 Ronald D. Rotunda & John
E. Nowak, Treatise on Constitutional Law § 20.11, at 279 & n. 2 (3d
ed.1999) (noting scholarly work on the governmental speech question).
Because the speech in the instant case is also sufficiently editorial in
character to fall within the scope of Forbes, we need not decide whether
its status as governmental speech is alone enough to preclude forum
analysis.
-APPENDIX A- p. 18 -
advertisements, because such forced access would "tend to
transform broadcasters into common carriers and would
intrude unnecessarily upon the editorial discretion of
broadcasters.") (quoting FCC v. League of Women Voters,
468 U.S. 364, 379 (1984)); see also Turner, 512 U.S. at 636
(noting that the editorial discretion of cable operators
extends not only to its choice of programs but also to
“which stations ... to include in its repertoire") (quoting Los
Angeles v. Preferred Communications, Inc., 476 U.S. 488,
494 (1986)). In the instant case, UMSL did not wish to
"publish" a financial association with the Missouri KKK.
Because “accepting” underwriting funds from the Missouri
KKK would trigger statutorily-mandated publication,
UMSL utilized its editorial discretion by rejecting the
proposed sponsorship in the first place and thus choosing to
remain silent. '? To require UMSL to accept program
sponsorship from all sources would surely intrude upon the
editorial discretion which Congress delegated. See CBS,
412 US. at 124-25 ("That editors--newspapers or
broadcast--can and do abuse this [editorial] power is
beyond doubt, but that is no reason to deny the discretion
Congress provided. Calculated risks of abuse are taken in
order to preserve higher values.... To agree that debate or
public issues should be ‘robust, and wide-open’ does not
mean that we should exchange ‘public trustee’ broadcasting,
with all its limitations, for a system of self-appointed
editorial commentators.").
Appellants' analogy to public transit and airport ads is
ill-chosen. As stated supra, the advertising in those cases
12. Appellants’ argument to the contrary, see Brief for Appellants at 43,
Chancellor Touhill's status as a non-journalist does not undercut her
power to make editorial determinations, because such decisionmaking
power is vested in the broadcaster licensee and delegated to the
Chancellor. See CBS, 412 U.S. at 124; Muir, 688 F.2d at 1044
(upholding university vice-president's decision to cancel a program on
university's public television station).
-APPENDIX A- p. 19 -
communicated the speech of private individuals and
groups, whereas the announcements here were the
government's acknowledgments of program funding
sources. Second, the underwriting spots do not fall within
conventional understandings of promotional advertising,
where companies freely trumpet their products and
services. See 47 U.S .C. § 399b (forbidding public
broadcasters from airing "advertisements," which "promote
any service, facility, or product offered by any person who
is engaged in such offering for profit" or which "express
the views of any person with respect to any matter of public
importance or interest."); see also 1992 Order, 7 F.C.C.R.
827 (clarifying scope of limits on _ underwriting
announcements); 1984 Order, 97 F.C.C.2d at 263 (severely
limiting content of underwriting announcements to certain
types of identifying, but not promotional, information).
Finally, the sponsorship identifications (and the donations
that precede them) are related to the journalistic purposes
of the station, in that the acknowledgments convey
important, federally-mandated information to the public
about the source of funding for particular broadcast
material. This "news" relates to the purposes and functions
of a noncommercial educational FM broadcaster, whereas
public transit and airport ads are only incidental to the
primary goal of transportation. Cf. /nternational Soc'y for
Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 682
(1992) (noting that goal of public airport terminal was "the
facilitation of passenger air travel," not "the promotion of
expression.").
In response to appellants’ final argument, we note that
forum analysis is not required by the mere fact of UMSL's
creation of an enhanced underwriting program. UMSL
instituted the enhanced underwriting program not to
communicate underwriters’ views, but rather to gather
financial support for KWMU, to acknowledge such
funding, and to provide brief identifications of its
-APPENDIX A- p. 20 -
underwriters. The presence of government speech in the
instant case makes inappropriate appellants' comparison of
the enhanced underwriting program to the exception for
candidate debates, given that those debates "allow[ed] the
candidates to express their views with minimal intrusion by
the broadcaster." Forbes, 118 S.Ct. at 1640 (emphasis
added). As stated before, no such private speech is at issue
here.
Conclusion
We agree with the district court's conclusion that
appellants’ rights under the First and Fourteenth
Amendments were not violated and appellees are entitled to
judgment as a matter of law. Accordingly, we affirm the
judgment of the district court.
-APPENDIX A- p. 21 -
APPENDIX B
OPINION OF THE UNITED STATES DISTRICT
FOR THE EASTERN DISTRICT OF MISSOURI,
EASTERN DIVISION
KNIGHTS OF THE KU KLUX KLAN, REALM OF
MISSOURI, and MICHAEL CUFFLEY, Petitioners,
vs. PATRICIA BENNETT, in her official capacity as
General Manager of KWMU Radio only, et al.,
Respondents. NATIONAL PUBLIC RADIO, a/k/a
NATIONAL PUBLIC RADIO, INC., Amicus Curiae.
Case No. 4:97CV2109 TCM
MEMORANDUM AND ORDER
This matter is before the Court upon the parties’ cross-
motions for summary judgment. [Docs. 40, 44] The
parties have stipulated to the submission of their dispute on
the testimony at an evidentiary hearing held on August 12,
1998, on Petitioners’ motion for a preliminary injunction;
exhibits submitted at that hearing; and exhibits attached to
the motions for summary judgment.
Background
The Knights of the Ku Klux Klan, Realm of Missouri,
and Michael Cuffley, the state coordinator for the Missouri
Knights of the Ku Klux Klan, initiated this action against
respondents, the individual Curators of the University of
Missouri, and Patricia Bennett, KWMU's general manager, '
‘The Board of Curators, also named as a respondent,
was previously dismissed by the Court. (See Order of July
13, 1998.)
APPENDIX B, p.1
seeking injunctive and declaratory relief on their claim that
Respondents violated their First and Fourteenth
Amendment rights when refusing the Ku Klux Klan's
request to underwrite a program broadcast by KWMU.
As the state coordinator for the Knights of the Ku Klux
Klan, Realm of Missouri, Mr. Cuffley is the highest
ranking official in that organization in Missouri. (Tr. 157.)
He has held that position for six years. (Id.) Mr. Cuffley's
duties for the Ku Klux Klan include speaking at public
events, planning activities, and coordinating activities with
other Ku Klux Klan organizations around the country. (Id.
at 158.)
Mr. Cuffley's organization traces its roots back to 1865
and the aftermath of the Civil War. (Id.) His organization
has no official ties to any other Ku Klux Klan
organizations, other than the use of the term Ku Klux Klan
in its title and a belief in the general principles of the Ku
Klux Klan. The Ku Klux Klan admits only American-born
white Christians. Mr. Cuffley testified that his organization
does not advocate violence, but does participate in “cross
lightings” -- Mr. Cuffley has participated in a hundred -- at
which members wear the traditional robes and hoods. (Tr.
at 171.)
KWMU is a not-for-profit public broadcast radio station
operated by the University of Missouri at St. Louis
("UMSL"). Its licensee, the Curators of the University of
References to "Tr." are to the transcript of the August
1998 evidentiary hearing on Petitioners’ Motion for
Preliminary Injunction.
APPENDIX B- p. 2 -
Missouri, is a member of National Public Radio,
Incorporated ("NPR"). (Jackson Aff. at & 4.) The Director
and General Manager of the radio station is Patricia
Bennett. (Tr. at 7.) She reports to Dr. Donald H.
Driemeier, the Deputy to the Chancellor of UMSL, who in
turn reports to Dr. Blanch M. Touhill, the Chancellor of
UMSL and its Chief Executive Officer. (Id. at9.) The
organizational chart for the station lists five divisions under
Ms. Bennett's control: the program director, the business
manager, the chief engineer, the development director, and
the sales manager. (Id.) The development director is in
charge of fund-raising, and the sales manager supervises
the sales representatives that seek underwriting for the
radio station. (Id. at 11, 12.) Only a certain percentage of
air time is allotted for underwriting spots. (Id. at 20, 21.)
What percentage is a decision, made internally by the
General Manager with input from her senior team. (Id. )
Different amounts of time are set aside for underwriting for
different shows, with some limitations being dictated by the
type of program. (Id. at 21-22.)
When an organization makes an underwriting gift to
KWMU, that organization is permitted to submit a fifteen-
second message to be read on the radio station. (Id. at 33.)
The donor provides a gift; KWMU acknowledges that gift
on the air. (Id. at 38.) Some underwriting messages are
drafted by the donors. (Id. at 38-39.) Other messages are
drafted by, or with input and assistance from, KWMU's
employees. (Id. at 39.) All underwriting scripts must be
reviewed by the station's management. Enhanced
underwriting permits the fifteen-second spot to provide
identifying information about the organization and a logo
or slogan of the donor's organization. (Id. at 29.) KWMU's
APPENDIX B- p. 3 -
policy is to permit enhanced underwriting. (Pet'rs Ex. 2.)°
Classes of underwriters include for-profit organizations,
companies, and corporations; not-for-profit organizations,
corporations and companies; and _ social services
organizations. (Pet'rs Exs. 3-24, 26-37.)
Although Ms. Bennett approves the text of
approximately thirty underwriting scripts per week, she
does not examine, as a matter of course, the policy or
philosophy of each potential underwriter. (Tr. at 62, 122.)
She has rejected a request for underwriting from a group
titled "Ultimate Fighting Championships"; an establishment
she heard was "a house of ill repute"; and the American
Friends Service Committee, the latter on the grounds that
the group's message was political. (Id. at 118, 121-22;
Bennett Dep. at 87.) Ms. Bennett testified that Federal
Communications Commission ("FCC") regulations do not
allow public radio stations to broadcast political
announcements from candidates, except those running for
federal office, or messages promoting or criticizing ballot
issues. (Id. at 82.)
Some time prior to September 24, 1997, Mr. Cuffley
contacted KWMU by telephone and requested information
on underwriting a number of fifteen second spots on the
station's "All Things Considered" program. (Id. at 160-61.)
"All Things Considered" is a radio program that is
produced and distributed by NPR, and is a part of KWMU's
regular programming. (Jackson Aff. at & 5.) Mr. Cuffley
ee
3Unless otherwise noted, the exhibits referred to in
this Memorandum and Order were submitted at the August
1998 evidentiary hearing.
APPENDIX B- p. 4 -
testified that he enjoys the program and wishes to support
the station. He hoped to attract a higher, more educated
person to his organization. (Id. at 160.) He did not initially
identify himself or his organization. (Id. at 161.) The sales
representative quoted Mr. Cuffley the underwriting costs
for not-for-profit organizations and requested his telephone
number, advising Mr. Cuffley that a sales representative
would contact him at a later date. (Id. at 161, 163.) There
was no contract or agreement worked out between the
representative and Mr. Cuffley. After approximately a
week with no contact by KWMU, Mr. Cuffley made
several telephone calls to the station but was unable to
speak with a sales representative. (Id. at 163-64.) On
September 24 and again five days later, Mr. Cuffley wrote
letters to the station requesting the opportunity to sponsor
four segments of "All Things Considered." (Resp'ts Ex. A.)
The following message was submitted to the radio station
by the Ku Klux Klan to be read in acknowledgment of the
underwriting gift:
The Knights of the Ku Klux Klan, a
white Christian organization, standing up for
rights and values of white Christian America
since 1865. For more information, please
contact the Knights of the Ku Klux Klan at
Post Office Box 525, Imperial, Missouri,
63052. Let your voice be heard.
(Tr. at 86-87.)
The message proposed by the Ku Klux Klan to be read
on air did not violate any of KWMU's_ enhanced
underwriting guidelines.“ (Id. at 89.)
*The underwriting guidelines provide, in relevant part,
as follows:
On-air Identification of Underwriters
‘APPENDIX B- p. 5 -
1.) An underwriter of programming is required
by the FCC to be identified by its legal or their
recognized name of operation.
2.) An entire underwriting announcement may
not exceed 15 seconds, including underwriters
[sic] name and name of program sponsored.
3.) On-air announcements may include:
(a) The name of the organization{[.]
(b) A logogram or slogan that identifies but
does not promote. Logograms and slogans
must comply with the rules outlined in FCC
86-161.
(c) Location{.]
(d) Value neutral descriptions of a product line
or service.
(e) Trade names, product or service listings
that aid in identifying the donor.
4.) On-air announcements may not include:
(a) A call to action to use a product or service,
or inducement to buy, sell, rent of [sic] lease
or Visit.
(b) Qualitative or comparative description of a
company, its products or services.
(c) Pricing information or indication of
associated savings or value.
(d) Logograms or slogans that contain
comparative or qualitative descriptions or are
promotional in nature.
(e) More than three trade names, product or
service listing in a single announcement.
(f) Any form of misrepresentation.
(g) The words "you," "your" and "we." Use of
these words implies a relationship between
the funder and the listener, rather than just
between the funder and KWMU.
5.) No pre-produced underwriting announcements,
audic logos, or musical themes will be accepted.
7.) [sic] KWMU airs no more than three local
underwriter announcements at each scheduled break.
APPENDIX B- p. 6 -
On October 3, Ms. Bennett wrote Mr. Cuffley a letter
declining the underwriting gift. (Pet'rs Ex. 38.)
Mr. Cuffley testified that he was accustomed to
receiving rejections on behalf of the Ku Klux Klan and
fully expected that KWMU would reject the Ku Klux
Klan's underwriting gift and proffered announcement. (Tr.
at 167.)
Ms. Bennett recognized Mr. Cuffley's request as a
potentially high profile issue which could result in
litigation. (Id. at 127.) Consequently, she contacted Dr.
Driemeier and requested a decision from the Chancellor as
to how to proceed. (Id. at 91.) Ms. Bennett recommended
to Dr. Driemeier that KWMU deny the Ku Klux Klan's
underwriting request; however, she did not explain her
reasons for her recommendation. (Id. at 91, 154.) Dr.
Driemeier told Chancellor Touhill of the Ku Klux Klan's
request, but did not inform her of Ms. Bennett's
recommendation. (Id. at 131, 154.) Dr. Driemeier wanted
8.) Under FCC rules, regualtions [sic] and policies,
KWMU has a duty to determine what programming
will best serve the public interest. The selection of
spokespersons, format; subject matter, duration and
scheduling of broadcast material is a matter within
KWMU's discretion. KWMU reserves the right to
reject any material.
(Pet'rs. Ex. 2.)
APPENDIX B- p. 7 -
Chancellor Touhill to make her decision with an open
mind. (Id. at 154.) Ms. Bennett did not speak with
Chancellor Touhill about the proposed underwriting gift
before the Chancellor made her decision. (Id. at 124.)
Chancellor Touhill rejected the Ku Klux Klan's offer to
underwrite programming on KWMU. (ld. at 131, 133.) It
was the only time that she had been asked to rule on the
acceptability of an underwriting offer. (Id. at 132.)
Chancellor Touhill testified that because the underwriting
_ gifts must be publicly recorded, KWMU would be required
to publicly acknowledge the Ku Klux Klan's gift and to
read the Ku Klux Klan message on the air.” (Id. at 133,
135.) She further testified that her reasons for rejecting the
Ku Klux Klan's proffer were based on_ business
considerations, specifically the loss of revenue to the
UMSL that would result from the Ku Klux Klan's message
being read on the air. (Id. at 135-36.) This conclusion was
based on her twenty-four years’ experience in college
administration. (Id. at 145, 149.) Chancellor Touhill
testified that the views of an organization should not be the
basis for KWMU's accepting or rejecting that organization's
underwriting offer.
Chancellor Touhill listed several specific economic
consequences that would be suffered by UMSL if the Ku
Klux Klan's underwriting offer was accepted. First, a
Title 47 U.S.C. ' 317(a)(1) provides, in relevant part:
All matter broadcast by any radio station for
which any money, service or other valuable
consideration is directly or indirectly paid, or
promised to or charged to or accepted by, the
station so broadcasting, from any person,
shall, at the time the same is so broadcast, be
announced as paid for or furnished, as the case
may be, such person. . .
APPENDIX B- p. 8 -
recurrent donor to the University is an African-American
who suffered indignation in World War II because of his
race. (Id. at 134.) He vowed to assist his race in
overcoming this prejudice if he achieved financial success.
He did, and has contributed $8.9 million to UMSL. (Id. at
146.) Chancellor Touhill feared the loss of this man's
financial support to UMSL if the Ku Klux Klan message
ran on air. This donor is also responsible for recruiting
other donors in the community; thus, his withdrawn support
would have adversely affected the support of others. (Id. at
134.) Second, UMSL is a relatively new institution and a
member of a university system that is sensitive to its past
history of resisting integration. (Id.) UMSL now enrolls
and graduates more African-American students than any
other college in the State. (Id.) Permitting the Ku Klux
Klan to make an announcement on KWMU would be a
reverse step in UMSL's efforts to maintain a diverse student
population. Third, as the Chancellor of UMSL, its primary
spokesperson, and most visible and_ high-profile
representative, she is a member of a number of the region's
civic and corporate boards whose objectives are to create
and maintain a “level playing field" for African-Americans
in the community. KWMU's association with the Ku Klux
Klan would be detrimental to these efforts.
Chancellor Touhill conservatively estimated that if the
underwriting was accepted, 25% of the 1,565 African-
American students at UMSL would leave the school,
resulting in a loss of approximately $920,000.00 to UMSL,
and 10% of the 9,142 white students would leave, resulting
in a loss of $2.1 million. (Id. at 147-48.) She also
estimated that of the $10 million in annual gifts to UMSL,
$2 million would be lost as a result of the Ku Klux Klan
underwriting gift. (Id.)
Thus, UMSL would lose, according to the Chancellor's
undisputed, conservative estimates, approximately
APPENDIX B- p. 9 -
ee Eee
$5 million if the Ku Klux Klan's underwriting gift was
accepted.
Discussion
Petitioners argue in their motion for summary judgment
that KWMU's underwriting practices make it a designated
public forum, and consequently, the Ku Klux Klan's
underwriting offer, which was consistent with KWMU's
guidelines, had to be accepted. Petitioners further argue
that Respondents (i) impermissibly rejected this offer based
on their perception of Petitioners’ social and political views,
(ii) employed an unconstitutionally overbroad and arbitrary
- editorial discretion, and (iii) had inherently unconstitutional
reasons, 1.e., reasons based on their perception of
Petitioners’ viewpoints, for excluding the Ku Klux Klan
from KWMU's underwriting program. Respondents
counter that KWMU is not a designated public forum.°
Both parties argue in their respective motions for summary
judgment that the Supreme Court's recent decision in
Arkansas Educ. Television Comm'n vy. Forbes, 118 S.Ct.
1633, 1641 (1998), compels entry of judgment in their
favor.
Standard for Review. Rule 56(c) of the Federal Rules of
Civil Procedure mandates the entry of summary judgment
if all of the information before the court shows "there is no
genuine issue of material fact and the moving party is
entitled to judgment as a matter of law." See Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986). An issue of
material fact is genuine if it has a real basis in the record;
°NPR also relies on the Forbes decision in the amicus
curiae brief it has submitted on behalf of Respondents.
APPENDIX B- p. 10-
and, a genuine issue of fact is material if it "might affect the
outcome of the suit under the governing law." Hartnagel
v. Norman, 953 F.2d 394, 395 (8th Cir. 1992) (citations
omitted).
The initial burden is on the moving party to clearly
establish the non-existence of any genuine issue of fact that
is material to a judgment in its favor. See City of Mt.
Pleasant, lowa v. Associated Elec. Co-op., Inc., 838 F.2d
268, 273 (8th Cir. 1988). After the moving party
discharges this burden, the non-moving party must do more
than show that there is some doubt as to the facts. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586 (1986). Instead, the non-moving party bears
the burden of setting forth specific facts showing that there
is sufficient evidence in its favor to allow a jury to return a
verdict for it. See Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 249 (1986). All disputed facts are to be resolved,
and all inferences are to be drawn, in favor of the non-
moving party. See Kopp v. Samaritan Health System,
Inc., 13 F.3d 264, 269 (8th Cir. 1993).
Conclusive assertions of ultimate fact are entitled to
little weight when determining whether a nonmovant has
shown a genuine issue of fact sufficient to overcome a
summary judgment motion properly supported by
depositions or affidavits. See Miller v. Solem, 728 F.2d
1020, 1024 (8th Cir. 1984). Moreover, where the
unresolved issues are primarily legal, rather than factual,
summary judgment is particularly appropriate. See Crain
v. Board of Police Comm'rs, 920 F.2d 1402, 1405-06 (8th
Cir. 1990).
The Medium. It is undisputed that KWMU is owned
and operated by the Curators of the University of Missouri
and that Ms. Bennett and Chancellor Touhill were acting in
their capacity as employees of the University when
rejecting the Ku Klux Klan's request for underwriting.
APPENDIX B-p. I! -
It is well settled that the government is not required to
allow all forms of speech on property that it owns and
controls. See International Soc'y for Krishna
Consciousness, Inc. v. Lee, 505 U.S. 672, 678 (1992).
"Where the government is acting as a proprietor, managing
its internal operations, rather than acting as lawmaker with
the power to regulate or license, its action will not be
subjected to the heightened review to which its actions as a
lawmaker may be subject." Id. Accordingly,
"[rjecognizing that the Government, 'no less than a private
owner of property, has power to preserve the property
under its control for the use to which it is lawfully
dedicated,’ the Court has adopted a forum analysis as a
means of determining when the Government's interest in
limiting the use of its property to its intended purpose
outweighs the interest of those wishing to use the property
for other purposes." Cornelius v. NAACP Legal Defense
and Educ. Fund, Inc., 473 U.S. 788, 800 (1985) (quoting
Greer v. Spock, 424 U.S. 828, 836 (1976)). "[T jhe Court
{has} identified three types of fora: the traditional public
forum, the public forum created by government
designation, and the nonpublic forum." See Forbes, 118
S.Ct. at 1641 (quoting Cornelius, 473 U.S. at 802)
(alterations in original).
"Traditional public fora are defined by the objective
characteristics of the property" and "are open for expressive
activity regardless of the government's intent." Id.
Exclusion is permitted only to the extent necessary to serve
a compelling state interest. Id. Designated public fora are
created by inientional governmental action, i.e., by the
government operating a nontraditional public forum for
public discourse. Id. "If the government excludes a
speaker who falls within the class to which a designated
public forum is made generally available, its action is
subject to strict scrutiny." Id. (citing Cornelius, 473 U.S. at
802; United States v. Kokinda, 497 U.S. 720, 726-27
APPENDIX B- p. 12 -
(1990)). In deciding what is a designated public forum,
“the Court has looked to the policy and practice of the
government to ascertain whether it intended to designate a
place not traditionally open to assembly and debate as a
public forum." Id. (quoting Cornelius, 473 U.S. at 802).
And, either a nonpublic fora or no fora at all is created
when the property is neither a traditional public forum nor a
designated public forum. Id. The government can,
however, "restrict access to nonpublic forum ‘as long as the
restrictions are reasonable and [are] not an effort to
suppress expression merely because public officials oppose
the speaker's view." Id. (quoting Cornelius, 473 U.S. at
800) (alteration in original).
In Forbes, the Supreme Court was presented with a
dispute arising out of a state-owned public television
broadcasting station's refusal to allow an independent
candidate with little popular support to participate in a
broadcasted debate of candidates for a congressional seat in
a particular district. The Court noted that the public forum
doctrine first arose in the context of streets and parks. Id.
at 1639. These "quintessential public forums" have been
“held in trust for use of the public and, time out of mind,
have been used for purposes of assembly, communicating
thoughts between citizens, and discussing public
questions." Perry Educ. Ass'n vy. Perry Local
Educators' Ass'n, 460 U.S. 37, 45 (1983) (quoting Hague
v. CIO, 307 U.S. 496, 515 (1939)).
Distinguishing between broadcast medium and other
forms of speech, the Court held that the forum doctrine
"should not be extended in a mechanical way to the very
different context of public television broadcasting."
Forbes, 118 S.Ct. at 1639.’ In such context, "broad rights
’For purposes of a First Amendment analysis, public
radio and public television are treated the same, see
Schneider _v. Indian River Community College
APPENDIX B- p. 13 -
ci Na a a nae
of access for outside speakers would be antithetical, as a
general rule, to the discretion that stations and their
editorial staff must exercise to fulfill their journalistic
purpose and statutory obligations." Id.
The Forbes Court analyzed the broadcast medium and
claims of access under the precedents of Turner
Broadcasting Sys., Inc. v. FCC, 512 U.S. 622 (1994)
(must-carry provisions of the Cable Television Act are
content neutral and are, therefore, subject to an
intermediate level of scrutiny; less rigorous standard of
scrutiny reserved for broadcast regulation should not be
extended to cable television); FCC vy. League of Women
Voters of California, 468 U.S. 364 (1984) (Public
Broadcasting Act violated the First Amendment by
restricting non-commercial educational stations that receive
funds from the Corporation For Public Broadcasting from
engaging in editorializing); and Columbia Broadcasting
Sys., Inc. v. Democratic Nat'l Comm., 412 U.S. 94 (1973)
(CBS). In CBS, the Court detailed the legislative history of
the Radio Act of 1927, which in its original form contained
language deeming radio licensees as common carriers in
interstate commerce. Id. at 106. The Court explained why
this provision was excluded from the final version of the
Act: "[s]ince it was physically impossible to provide time
for all viewpoints...the right to exercise editorial
judgment was granted to the broadcaster." Id. at 1112
Foundation, 875 F.2d 1537, 1541 (11th Cir. 1989), as are
television and radio generally, see McIntyre _v. Ohio
Elections Comm'n, 514 U.S. 334, 338 n.3 (1995).
®Senator Dill, the principal architect of the Radio Act
of 1927, offered the amendment eliminating the common
carrier obligation, explaining:
When we recall that broadcasting today is
purely voluntary, and the listener-in pays
APPENDIX B- p. 14-
"The fundamental distinguishing characteristic of the new
medium of broadcasting that, in our view, has required
some adjustment in First Amendment analysis is that
‘(b]roadcast frequencies are a scarce resource [that] must be
proportioned out among applicants." League of Women
Voters, 468 U.S. at 377 (quoting CBS, 412 US. at 101)
(alterations in original). "The justification for our distinct
approach to broadcast regulations rests upon the unique
physical limitations of the broadcast medium." Turner,
512 U.S. at 637. "As a general matter, there are more
would-be broadcasters than frequencies available in the
electromagnetic spectrum.” Id.
The unique nature of the broadcast medium results in
"the application of a less rigorous standard of First
nothing for it, that the broadcaster gives it for
the purpose of building up his reputation, it
seemed unwise to put the broadcaster under
the hampering control of being a common
carrier and compeiled to accept anything and
everything that was offered him so long as the
price was paid.
CBS, 412 U.S. at 106 (quoting 67 Cong. Record 12502)
(emphasis added).
APPENDIX B-p. 15 - :
TL ee
Amendment scrutiny to broadcast regulation." Id.
Acknowledging that some criticism has been directed to
the "scarcity rationale," the Court "declined to question
its validity." Id. at 638. "As we said in Red Lion
‘[w]here there are substantially more individuals who
want to broadcast than there are frequencies to allocate, it
is idle to posit an unbridgeable First Amendment right to
broadcast comparable to the right of every individual to
speak, write, or publish." Id. quoting Red Lion
Broadcasting Co. v. FCC, 395 U.S. 367, 388 (1969))
(alteration in original).
Following the map drawn by these three decisions, the
Court held that "[a]s a general rule, the nature of editorial
discretion counsels against subjecting broadcasters to
claims of viewpoint discrimination." Forbes, 118 S.Ct. at
1639. To hold otherwise, would render broadcasters’
normal programming decisions "particularly vulnerable" to
these claims because "even principled exclusions rooted in
social journalistic judgment can often be characterized as
viewpoint-based." Id. Claims of access in the area of
broadcasting are counterproductive because if given
"sweeping application" courts would be required to oversee
the daily operations of broadcasters, determining whether
various viewpoints are presented sufficiently or provided
enough time on air. Id. at 1640 (citing CBS, 412 U.S. at
127). This would place control over how public issues are
treated on air from the licensees who are accountable for
broadcast performance to private individuals, such as
Petitioners. Id. (citing CBS, 412 U.S. at 124). "In effect,
we would ‘exchange "public trustee" broadcasting, with all
its limitations, for a system of self-appointed editorial
commentators." Id. (quoting CBS, 412 U.S. at 125). The
"limitations" include obligations imposed on_ the
broadcaster in order to acquire and maintain a license to
broadcast. "Among the broadcaster's responsibilities is the
duty to schedule programming that serves the ‘public
APPENDIX B- p. 16 -
interest, convenience, and necessity." Id. at 1639 (quoting
47 U.S.C. ' 309%a)).° The renewal of a license to broadcast
may be denied if the licensee failed in the preceding term
of its license to "serve the public interest, convenience, and
necessity." 47 U.S.C. '309(k)(1)(A).
"In the delicate balancing historically followed in the
regulation of broadcasting Congress and the Commission
could appropriately conclude that the allocation of
journalistic priorities should be concentrated in the licensee
rather than diffused among many." CBS, 412 U.S. at 125.
These distinctions between broadcasting and other forms of
speech compelled the Supreme Court to conclude that
"public broadcasting does not lend itself to scrutiny under
the forum doctrine[,]" with the narrow exception to the rule
presented by candidate debates. Forbes, 118 S.Ct. at 1640.
The Court cited two reasons for carving out the
exception in Forbes and engaging in an examination of the
type of fora presented by candidate debates.'® Neither
reason is present in the instant case. First, the Court's
finding that a debate permits candidates to express their
view with "minimal intrusion by the broadcaster" has
questionable application in the instant case. The evidence
before the Court is that KWMU personnel review the
underwriting text provided by each potential donor, amends
and edits the text when it does not meet the underwriting
policies of the station, and, in some instances, writes the
*Title 47 U.S.C. ' 309(a) requires that the FCC
determine if "public interest, convenience, and necessity"
would be served by granting an application for a radio station
license.
‘The Supreme Court determined that the special
characteristics of candidate debates supported a conclusion
that the broadcast debate was the least restrictive fora -- the
nonpublic forum. Forbes, 118 S.Ct. at 1640-41.
APPENDIX B- p. 17-
entire text of the donor's announcement. It is clear that the
views expressed by the donors are not those of the station;
however, it is a KWMU employee who reads the
announcement -- not the donor. In a debate, it is the
candidate who speaks and who prepares his or her text
which is generally not subject to the broadcaster's editing.
Second, while candidate debates are of "exceptional
significance in the electoral process," Forbes, 118 S.Ct. at
1640, underwriting announcements hold a less significant
position in the electoral process and, standing alone, do not
enjoy the revered tradition in the broadcasting field as do
candidate debates.
Petitioners argue that "Forbes teaches that while public
broadcasting 'as a general matter does not lend itself to
scrutiny under the forum doctrine,’ the broadcaster can
exercise its editorial discretion to designate certain portions
of its programming as various types of public fora." (Mem.
at 2.) The Court reads a different lesson in Forbes: public
broadcasting, because of the unique nature of the medium,
does not, with the one exception of candidate debates, "lend
itself to scrutiny under the forum doctrine." Forbes, 118
S.Ct. at 1640 (emphasis added). Accordingly, the enhanced
underwriting program implemented at KWMU to raise
funds for its operation is not a forum.
Petitioners further argue that enhanced underwriting
program is a revenue-generating operation at KWMU and
therefore does not enjoy the protection granted in Forbes to
editorial discretion. The underwriting program is more
properly analogous to advertising space on_ buses,
Petitioners contend, than to the broadcast programming of
Forbes. Again, Petitioners misapprehend the scope of
Forbes. Broadcasters have a finite amount of air time;
what is broadcast during that time is a matter of discretion.
If the broadcasters fail to air programs that serve the
"public interest, convenience, and necessity," their license
will not be renewed. To finance their programs, KWMU
APPENDIX B- p. 18 -
exchanges a fifteen second announcement for funds. The
text of that announcement and who may provide the funds
are subject to regulation and to KWMU's guidelines. The
announcement is read by KWMU's employees. To
interpret the enhanced underwriting program as a forum
would be to engage the courts in the day to day operation of
the radio station -- an engagement prohibited by Forbes.
For the foregoing reasons, the Court finds that KWMU
is not required to accept the Ku Klux Klan's offer to
underwrite "All Things Considered."
The Fora. Were the Court to engage, however, in a
forum analysis, the Court would not find, as urged by
Petitioners, that KWMU's enhanced underwriting program
is a designated public forum.
"The government does not create a public forum by
inaction or by permitting limited discourse, but only by
intentionally opening a nontraditional forum for public
discourse." Cornelius, 473 U.S. at 802. Moreover, the
government does not create a designated public forum
when it reserves eligibility to a class of speakers who must
obtain permission to use the property. Forbes, 118 S.Ct. at
1642; Perry Educ. Ass'n, 460 U.S. at 47. "In cases in
which limited access is sought, our cases have taken a more
tailored approach to ascertaining the perimeters of a forum
within the confines of the government property.@
Cornelius, 473 U.S. at 801.
Petitioners cite the following cases as authority for their
argument that KWMU created a designated public forum
by accepting enhanced underwriting gifts: Rosenberger v.
Rector and Visitors of the Univ. of Virginia, 515 U.S.
819 (1995) (denial of funds to university student
organization which published newspaper with religious
editorial viewpoints violated First Amendment; guidelines
for funding did not prohibit religion as subject matter but
selected for disfavored treatment journalistic efforts with
APPENDIX B- p. 19 -
a ee eae i ee
religious editorial viewpoints); International Soc'y for
Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992)
(airport authority's prohibition on _ solicitation of
contributions inside airport terminal, a nonpublic forum,
was reasonable); Widmar v. Vincent, 454 U.S. 263 (1981)
(exclusion of religious groups from university's open forum
policy, making university's facilities generally available for
student group activities, violated religious groups’ First
Amendment rights); Burnham vy. Ianni, 119 F.3d 668 (8th
Cir. 1997) (removal of photographs of professors with
objects related to their academic interests from university
department display case violated professors’ First
Amendment rights); New York Magazine vy. Metro
Transp. Auth., 136 F.3d 123 (2nd Cir. 1998) (public
transit authority's refusal to display magazine's
advertisement using mayor's name to promote commercial
product on buses, designated public forum, violated
magazine's First Amendment rights); Air Line Pilots Ass'n
Int=I v. Dept. of Aviation of the City of Chicago, 45 F.3d
1144 (7th Cir. 1995) (city's rejection of union's
advertisement critical of airport from display cases at
airport, a public forum, violated union's First Amendment
rights); and Planned Parenthood Ass'n/Chicago Area Vv.
Chicago Transit Auth., 767 F.2d 1225 (7th Cir. 1985)
(transit authority's refusal to rent space in advertising space
on system, a public forum, to Planned Parenthood group
violated that group's First Amendment rights). In each
case, Petitioners argue, the government's exclusion of a
group from its property traditionally available for public
expression was subjected to highest scrutiny.
Significantly, the foregoing cases did not involve
broadcasting or a similarly scarce resource. The Supreme
Court has been reluctant to force or order publishers or
broadcasters into accepting forms of speech. See e.g.
Arkansas Educ. Television Comm'n vy. Forbes, 118 S.Ct.
1633 (1998) (state-owned television station's exclusion of a
APPENDIX B- p. 20 -
candidate from a televised debate was a viewpoint neutral
exercise of journalistic discretion); FCC v. League of
Women Voters, 468 U.S. 364 (1984) (section of the Public
Broadcasting Act forbidding noncommercial educational
stations which received funds from the Corporation for
Public Broadcasting from engaging in editorializing
violated the First Amendment); Miami Herald Publishing
Co. vy. Tornillo, 418 U.S. 241 (1974) (state statute
requiring newspapers that criticized a public candidate to
provide free space for that candidate's reply violated
newspapers’ First Amendment rights); Columbia
Broadcasting Sys., Inc. v. Democratic Nat'l Comm., 412
U.S. 94 (1973) (FCC ruling allowing broadcasters not to
accept editorial advertisements did not violate advertisers’
First Amendment Rights).
The uncontradictec testimony is that employees at
KWMU review each request for underwriting. The text of
the announcement is reviewed and edited when KWMU
determines that a change is necessary. Permission from
KWMU is required in order to underwrite a program. The
underwriting announcement is read by KWMU employees
on air and is not read by a representative of the underwriter.
KWMU is authorized to accept underwriting funding but is
required to identify the underwriters on air. See 47 U.S.C.
'317(a)(1). The underwriting announcement is limited to
fifteen seconds and may not interrupt regular programming.
See 47 C.F.R. '73.503(d). KWMU is precluded from
accepting advertising over its airways. See 47 U.S.C. '
399(b)(2). FCC regulations do not allow public radio
stations to broadcast messages promoting or criticizing
ballot issues nor is the station allowed to broadcast political
announcements from candidates, except those running for
federal office.
It is undisputed in the instant case that KWMU seeks
underwriters to support the station. Indeed, the station has
a whole division dedicated to seeking underwriters. Thus,
APPENDIX B- p. 21 -
ee
it is arguable that the point of the underwriting program is
to generate income, not to provide an underwriter with a
forum. Nonetheless, in return for the donation, KWMU
provides the underwriter with fifteen seconds of air time for
a message. The underwriter is not, however, given carte
blanche with that time and is subject to the restrictions
noted above.
The foregoing restrictions demonstrate the
inapplicability of a designated public forum designation to
KWMU's underwriting policy. To demonstrate otherwise,
Petitioners must establish that the government "intended to
designate a place [KWMU] not traditionally open to
assembly and debate as a public forum." Cornelius, 473
U.S. at 802. Petitioners have failed to do so.
The Fifth Circuit Court of Appeals designated a state's
adopt-a-highway program to be a nonpublic forum in State
of Texas v. Knights of the Ku Klux Klan, 58 F.3d 1075
(Sth Cir. 1995). The state had rejected the Ku Klux Klan's
application to "adopt" a portion of a highway near a public
housing project subject to a continuing desegregation order.
The Court noted that the purpose of Texas’ adopt-a-
highway program was to allow citizens an opportunity to
support the state highway department's efforts to control
and reduce litter and was not to open the highway for
“public discourse." Id. at 1078. “Any opportunity for
speech provided by the Program is peripheral to that central
purpose. The government does not create a public forum
merely by permitting some speech." Id. (citing Cornelius,
473 U.S. at 802; Perry Educ. Ass'n, 460 U.S. at 47.) The
Court considered several factors when it concluded that the
adopt-a-highway program was a nonpublic forum. As
noted above, the primary purpose of the program was to
keep the highways litter-free, it was not to be a forum for
APPENDIX B- p. 22 -
expressive activity." Id. Moreover, as noted by the Court,
the "State of Texas restricts and controls the size and
content of the signs posted at the ends of the adopted
miles." Id. (regulatory citation omitted). Persons who
were not state officials could not erect their own signs
without state authorization. Id. at 1079. The Court held
that "[s]uch limitations on the quantity and content of
speech are indicative of an intent to maintain a nonpublic
forum." Id. (citing Cornelius, 473 U.S. at 800).
Additionally, the State of Texas restricted participation in
the program to certain entities, excluding individuals and
political organizations, and required that all applications
had to be approved by the state's department of
transportation. Id. But cf. Knights of the Ku Klux Klan
v. Arkansas State Highway and Transp. Dep't, 807 F.
Supp. 1427 (W.D. Ark. 1992) (state's denial of Knights of
the Ku Klux Klan's application to participate in state's
adopt-a-highway program, a public forum, violated that
organization's First Amendment rights).
It is undisputed that KWMU is not a traditional public
forum; and, for the reasons set forth above, the Court
rejects Petitioners' argument that it is a designated public
forum. Accordingly, the property is, at best, a nonpublic
forum.’ “The government can restrict access to a
nonpublic forum ‘as long as the restrictions are reasonable
and [are] not an effort to suppress expression merely
because the public cfficials oppose the speaker's view.""
“’The Court notes that in the Texas case the extent of
the "discourse" was simply the organization's name on a sign
at the beginning and at the end of the adopted stretch of
highway, as compared to the enhanced underwriting permitted
by KWMU.
125 discussed above, however, the Court first finds
that KWMU is not a forum at all.
APPENDIX B- p. 23 -
Forbes, 118 S.Ct. at 1641 (quoting Cornelius, 473 U.S. at
800) (alteration in original). "To be consistent with the
First Amendment, the exclusion of a speaker from a
nonpublic forum must not be based on the speaker's
viewpoint and must otherwise be reasonable in light of the
purpose of the property." Forbes, 118 S.Ct. at 1643 (citing
Cornelius, 473 U.S. at 800).
The evidence is undisputed that Chancellor Touhill
made the decision to refuse Petitioners’ underwriting gift
based upon business and economic reasons and not because
she was attempting to suppress Petitioners’ views.
Chancellor Touhill is an experienced college administrator.
Her decision to refuse Petitioners' offer to underwrite a
program was based upon her expertise as a college
administrator and Chancellor. The reason for the rejection
is similar to the rationale used by the Arkansas Educational
Television Commission in Forbes. In that case, the Court
found that the television station's refusal to allow a
candidate in a debate was not viewpoint based. 118 S.Ct. at
1643-44. The Court specifically found that the
Commission's executive director determined that: (1) the
Arkansas voters did not consider Forbes a_ serious
candidate; (2) the national news organizations did not plan
to run Forbes’ name in results on election night and did not
consider him a serious candidate; and (3) Forbes had little
financial support and no headquarters other than his home.
Id. "It is, in short, beyond dispute that Forbes was
excluded not because of his viewpoint but because he had
generated no appreciable public interest. There is no
substance to Forbes' suggestion that he was excluded
because his views were unpopular or out of the mainstream.
His own objective lack of support, not his platform, was the
criterion." Id, at 1644 (interim citation omitted).
In the instant case, Chancellor Touhill determined that
accepting underwriting from the Ku Klux Klan would
result in a loss of financial support from the school's
APPENDIX B- p. 24 -
patrons. She considered the makeup of the school's
enrollment and through her experience and knowledge |
determined that there would be a loss of enrollment and, |
therefore, a loss of money to the University if she accepted
the Ku Klux Klan's underwriting gift. She testified as to
the approximate amount of financial support that UMSL
would lose if KWMU were to read the Ku Klux Klan's
underwriting message on the air. Petitioners did not
challenge the figures. As Petitioners note, however, there
is no evidence that Chancellor Touhill collected empirical
data to support her position. Nor was there such evidence
in Forbes.
The Court finds that KWMU's decision was not
viewpoint based.
Conclusion
Petitioners vigorously argue that the general
unpopularity of their viewpoint and a misperception that
their viewpoint is linked with violence should not,
consistent with their First Amendment rights, preclude
them from underwriting a program on a public radio
station, specifically "All Things Considered" on KWMU.
Arguments such as Petitioners'assist the courts in
safeguarding the First Amendment. As important as these
arguments are, however, Petitioners are not guaranteed
access to all medium simply because their viewpoints are
unpopular. They are not guaranteed access to a public
radio station, given the unique nature of the medium. For
the reasons set forth above, the Court finds that KWMU is
not a forum and the rejection of Petitioners’ request to
underwrite a program on KWMU is not a violation of their
First Amendment rights.
Accordingly,
APPENDIX B- p. 25 -
IT IS HEREBY ORDERED that Respondents' Motion
for Summary Judgment is GRANTED (Doc. 40]; and
IT IS FURTHER ORDERED that Petitioners' Motion
for Summary Judgment [Doc. 44] is DENIED.
A separate Judgment shall accompany _ this
Memorandum and Order.
THOMAS C. MUMMERT, III
UNITED STATES MAGISTRATE JUDGE
Dated this 10" day of May, 1998.
APPENDIX B- p. 26 -
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